RE ASHFAQ MUHAMMAD

CACV 462/2018

[2019] HKCA 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 462 OF 2018

(ON APPEAL FROM HCAL NO. 790 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) of 5 September 2018, refusing to grant leave to the applicant to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 9 October 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1848.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a Pakistani national.  He entered Hong Kong illegally on 8 January 2016 and was arrested by the police on the same day.  The applicant was then referred to the Immigration Department and on 11 January 2016, he lodged his non-refoulement claim (“NCF”) by way of written representation.  On 2 March 2016, he lodged a detailed NCF with the assistance of the Duty Lawyer Service, claiming non-refoulement protection on all applicable grounds.  His claim was based on his fear of being harmed, or even killed by Nasreen’s brothers if he were returned to his home country as Nasreen’s family disapproved his relationship with Nasreen.

5.  By a Notice of Decision dated 17 June 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 18 May 2017, the Director also assessed his claim on BOR 2 risk and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision.  After an oral hearing on 10 August 2017, the Board dismissed the appeal on 16 October 2017.  The Board was sceptical of the applicant’s story and despite the applicant was provided with every opportunity to explain and clarify his case, there were inconsistencies that undermined his credibility.  The Board took the view that the applicant had fabricated a story to support the chronology of his application for a China Visa.  Even on the account of the applicant’s evidence, he had failed to establish the ill-treatments alleged suffered by him had reached the minimum level of severity under any of the applicable grounds.  The Board further found that the availability of state protection and internal relocation would minimize the level of risk.  The Board concluded that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decision of the Director.  The Form 86 filed on 19 October 2017 did not contain any grounds for judicial review.  In the supporting affirmation, the applicant only requested the Court to grant him leave to apply for judicial review.

8.  On 5 September 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [13] for her refusal to grant leave:

“Leave to apply for judicial review

10. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11. here were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavor with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his/her case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

9.  The applicant filed the Notice of Appeal on 18 September 2018 in which he set out the following ground of appeal:

“The learned Judge wrongly exercised her discretion in that leave to apply for judicial review of the Director’s decision was refused because the Director decided the applicant did not give any explanation for the delay. In any case, he had the opportunity of an appeal before the TCAB and he had made use of that channel to challenge the Director’s decision. Leave to apply for judicial review of the Director’s decision is refused.

By the time the Director’s decision was made, I have already lodged the appeal at the Torture Claims Appeal Board (“TCAB”), which was an appeal against their decision under the three grounds for non-refoulement, i.e. BOR 3 Risk, Persecution risk, as well as torture, and not BOR 2, as it was not one of the grounds under non-refoulement claim at the material time. As per the application procedure, any appeal against decisions made by the Director of Immigration should be lodged at the TCAB, not the High Court.

Having regard to the above circumstances, the learned Judge ought to have considered the application procedure and not to apply the time restriction in the current scenario.

The Court of Final Appeal held that the right to freedom from “cruel, inhuman or degrading treatment or punishment” [CIDTP] as enshrined in Article 3 of the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance (Cap. 383 of the Laws of Hong Kong) is an absolute and non-derogable right to which there are no exceptions.”

10.  In the supporting affirmation filed on 18 September 2018, the applicant set out various grounds of complaints against the Director’s decision, but he did not raise any complaint against the Judge’s decision.

Discussion

11.  The applicant did not put forward any grounds for his intended challenge for judicial review when applying for leave before the Judge and it is not now open to him to rely on these grounds of appeal as set out in the Notice of Appeal, when it was not advanced in the court below. 

12.  Further, we see no merit in the grounds of appeal as the applicant merely voiced out his disagreement with the Judge’s refusal to grant him leave to apply for judicial review but failed to advance any effective arguments against Judge’s findings and decisions.  Thus, the grounds of appeal are plainly not arguable and doom to fail.

13.  In any event, we take the view that the Judge’s observations and findings are justified.  The Judge had rightly concluded at [12] – [13] of the CALL-1 Form that the decisions made by the Director and the Board were well considered and correctly made.  There was no error of law or procedural unfairness or irrationality nor any failure to adhere to the high standard of fairness in their consideration and assessment of the applicant’s claim.  In our judgment, there is no basis or justification to interfere with their decisions.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.